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Indians Pull Appeal to Cobell Settlement; Government Says Payments By Year’s End

Rob Capriccioso

11/8/12

The three remaining Indian appellants have made the difficult decision to ask the U.S. Supreme Court not to consider their petition to appeal the $3.4 million Cobell settlement. The court dismissed the petition on November 6. “We pulled our case out of the Supreme Court,” Mary Aurelia Johns, a Cheyenne River Sioux citizen, told Indian Country Today Media Network. “This was based on the fact that it was too big of a gamble with this court and how far it could reach to make changes in Indian law and hurt Indian country. None of us were willing to go down in history as the ones who caused this.” Johns said the original intention for filing the appeals was because they felt Indian country deserved better. They have questions now whether the Supreme Court justices would feel the same way. The other two appellants were Carol Eve Good Bear, a Fort Berthold Reservation citizen, and Charles Colombe, a Rosebud Sioux citizen. Johns said the appeals by Indians were not without merit. She said the appeals were responsible for getting the federal government to change the $1.9 billion portion of the agreement designated for the U.S. Department of the Interior to establish a land consolidation program so that the money there would not be used as a loan to tribes. Under Congress’ authorizing language of the settlement, liens could have been placed on all income from sales of land acquired by the federal government under the land consolidation program until the tribes paid the liens back. In essence, by turning that property over to a tribe with a lien on it, Interior would have been forcing tribes to take loans to get the land. “This was a deal we made [with the government] for not appealing the decision of the district court back to the court with all justices reviewing the case,” Johns said. Because they also stopped their Supreme Court appeal, which was based partially on class-action law, the major problems they and other Indians had with the settlement remain in it. Namely, the lawyers in the case are scheduled to receive approximately $100 million, while most class-action members will receive less than $2,000. “This has been a long struggle, and I still believe the Cobell agreement was not in the best interest for Indian country,” Johns said. “[But] if we did win, and then the ruling took away from anything to do with [Indian] trust [law], we would have ultimately lost for our people, and we just could not go there and take a chance. It was a very, very difficult decision.” Kimberly Craven, a Sisseton-Wahpeton Oyate citizen whose own appeal of the settlement was denied to be heard by the high court in late-October, said she was surprised and disappointed that the other three Indians chose to drop their appeal. She strongly believes that the settlement is flawed and that Indians could have gotten a better deal. Dennis Gingold, the lead Cobell lawyer, had been highly critical of the Johns, Good Bear, and Colombe appeal when they filed it in September. “It is truly the poorest Supreme Court cert petition that I have ever reviewed, and it confirms the soundness of findings made by the U.S. Court of Appeals for the D.C. Circuit in its per curiam opinion, e.g., that Harrison blatantly mischaracterized facts and that his arguments are utterly without merit, unsupported by precedent, and lack common sense,” Gingold told ICTMN in September regarding the appeal, filed by Indian lawyer David Harrison. In a new letter to class members sent by e-mail November 7, Gingold said that Johns, Good Bear, and Colombe ”agreed to dismiss with prejudice their Supreme Court petition in return for Class Counsel’s agreement to pay their attorney's fees and expenses out of attorneys’ fees we expect to receive. “Because of the Supreme Court's rejection of Craven's petition, we believe the other appellants have realized what everyone else had known all along: that their appeal had no merit and no chance of success,” Gingold wrote. “However, because it had the potential to delay further your settlement payments, we, Class Counsel, offered to pay the three petitioners their attorney’s fees and expenses out of our attorneys’ fees. This will greatly increase the likelihood that we can begin to disburse settlement funds to you before Christmas and before winter is fully upon you.” How much money Johns, Good Bear, and Colombe will receive from this deal with the Cobell lawyers has not been announced. Sources close to the case said the Cobell lawyers had previously offered money to the appellants to dismiss their appeals, but, until now, all had rejected those offers. Secretary of the Department of the Interior Ken Salazar said recently that he anticipates that payments to Indian class members could go out by the end of the year. Gingold said in his letter that within the next month or so, the government will pay into the Cobell account at J.P. Morgan, the approved settlement bank, settlement funds out of the Claims Judgment Fund of the United States. “However, before that payment is made, the Attorney General must certify that the case is final and an Assistant Secretary of the Treasury must certify that it is proper to access the Judgment Fund to make that payment,” Gingold said. “Secretary Salazar has assured Indian country that the government is ‘ready to hit the ground running as soon as the Supreme Court makes a decision.’ We believe him. Accordingly, there is good reason to be optimistic.”

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Very good article. Enjoyed reading the thoughts and decision resulting in their reason to withdraw their petition. Coming from an appellant instead of an attorney, you can understand that even though the appellants feel strongly about their reasons for disagreeing with the settlement, their desire to not bring future grief upon Indian landowners is stronger than their personal beliefs in the settlement. Good job ICMN and Ms. Johns on the article. I have seen the announcement posted in the Washington Post, Indanz, Daily Oklahoman, and the Union Times (Helena, MT) and all were AP press releases. This article went deeper and resulted in an extremely informative insight.

Gingold is one sketchy-sounding guy. And the way he talks and disrespects those who thought, with good reason, that this is an unfair settlement for all of Indian country says a lot about his character.

Finally it's over! Sorry but these 3 people knew all along that they didn't stand a chance...to me this appeal &amp; craven's appeal to the scotus was just a last "great act of defiance". Sure this settlement didn't correct all wrongs or make-up the accounting errors/mistakes but to many it's a start, a fresh slate to make sure this will never happen again. In the future if you're getting ripped off on your IIM account or resources/lands, then PLEASE take immediate action!!! Don't wait for a class-action suit to recover your damages...

I strongly feel that Eloise Cobell can finally be at peace because without her voice Natives would not been heard. She was a remarkable person who had spoke for Native Americans. Someone posted the fees for attorneys were too much and I agree with but what the settlement pays out is it really enough for ur native americans?

Sad, the whole thing is just very sad. There are families that have had to put with the mismanagement of their IIM accounts for over 40 years and they are to get the $2000.00 also. The government has cleaned their hands forever of the vast majority of the IIM account holders that take this money.

Our sister from the Blackfeet tribe at least got us something from the white man's goverment. Our many peoples have always been taken advantage of by these invaders who took most all we were granted by the Great Spirit to look after.
The white man's government in Washington D.C. seldom, if ever, kept a treaty with any of our many peoples. The Europeans who invaded our many lands for centuries sold lands to the white man's government that were not theirs to sell.
One cannot own the land. It is the Great Spirit's to grant caretakership to we here below until we go join the ancestors. We use what we need to eat & heal ourselves with.
The white race & Europeans before them are never satisfied with what they had or have, they only want more & more until all that is around them is destroyed & good for nothing. Greed is a disease of the spirit &the heart.